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| Marielena Hincapié |
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| Stephen Yale-Loehr |
While New York has historically been a destination for millions of immigrants, the current situation has exposed an urgent problem in our immigration legal services infrastructure.
Without access to adequate legal representation, people at risk of deportation are at a severe disadvantage when trying to establish legal claims that allow them to stay in the U.S. For that reason, New York legislators ought to both increase funding for immigration legal services and pass the Access to Representation Act.
The notorious complexity of immigration law makes it nearly impossible for individuals to navigate the system on their own. It requires a deep understanding of byzantine rules and regulations. For those facing deportation, the stakes are often permanent family separation, or worse, death. Without proper legal representation, people are left vulnerable and with little chance of success.
As of January 2024, more than half of all people in New York immigration courts were unrepresented.[1]
Multiple studies point to the benefits of universal representation. Immigrants in detention are up to 10 times more likely to secure their right to stay in the U.S. when supported by legal counsel, according to a 2015 study published in the University of Pennsylvania Law Review. Similarly, for nondetained individuals, having legal representation significantly boosts the chances of a favorable outcome to 60% — a stark contrast to the 17% success rate in cases without the help of immigration attorneys.[2]
Immigrants contribute significantly to local economies, enriching areas that could use greater economic vitality and adding cultural diversity to our communities. Many of these residents are on solid legal ground to pursue protection against deportation.
U.S. law establishes eligibility for immigration status based on factors like experiencing persecution or torture for one's beliefs or identity in one's country of origin; being the survivor of human trafficking, domestic violence or another crime in the U.S.; and the harm deportation would cause to U.S. citizen family members if deported.
The existence of such laws acknowledges the need to protect vulnerable people coming to the U.S. and the importance of immigrants to their loved ones and communities.
However, because they cannot afford counsel, many immigrants facing deportation do not even know what their options are, and immigrants who have strong claims to relief may languish in immigration detention, or give up and are then deported. Stories abound of people unable to afford private immigration attorneys who are also turned away by nonprofit legal service providers because such providers are stretched too thin.
Immigration law clinics at law schools around the state teach students to represent clients in these complex cases and help train the next generation of desperately needed immigration lawyers. However, law school clinics are not enough to meet the need. New York needs a systemic investment in sustainable, long-term legal services infrastructure, supervision and training.
This legal services infrastructure must also be comprehensive and interdisciplinary, staffed by social workers who can provide crucial support to individuals who have experienced trauma and help them build successful lives.
Last year, the New York Legislature funded $63 million for immigration legal services. That is a good start. But much more is needed to build, train and retain a sustainable foundation of holistic legal teams into the future.
A proposed investment of $150 million in legal services, advocated by the Campaign for Access, Representation and Equity for Immigrant Families, is a critically important measure to support both newly arriving individuals and longtime residents.[3]
New York state was the first in the nation to establish a statewide publicly funded deportation defense program, through the creation of the New York Immigrant Family Unity Project.[4]
The funding requested this year builds upon this groundbreaking program and is a crucial step to ensure that newly arriving immigrants, and the communities in which they live, can thrive.
In addition to robust state investments in immigration legal services, it's also critical to pass the Access to Representation Act, which would enshrine in state law the right to an attorney in deportation proceedings.[5] It would eliminate the recurring uncertainty created by the state's annual budget negotiations for funding immigrant legal services.
Addressing the complexities of immigration law and the challenges individuals face without adequate representation will pave the way for a more inclusive, just and resilient New York. It is time to recognize the value immigrants bring to our communities and ensure they have the legal support necessary to succeed and the opportunity to contribute fully to the communities in which they become valued members.
Legal scholars across the country have looked to New York's leadership as a model for increasing legal representation for immigrants. With greater support from state government, New York can continue to lead the way once again.
Marielena Hincapié is a distinguished immigration scholar at Cornell University Law School. She previously served as executive director of the National Immigration Law Center and the NILC Immigrant Justice Fund.
Stephen Yale-Loehr is a professor of immigration law practice at Cornell University Law School, where he co-directs the asylum appeals clinic. He is co-author of "Immigration Law and Procedure."
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://trac.syr.edu/phptools/immigration/ntanew/.
[2] https://perma.cc/82F5-WE2D.
[3] https://care4immigrants.org/.
[4] https://www.vera.org/ending-mass-incarceration/reducing-incarceration/detention-of-immigrants/new-york-immigrant-family-unity-project.
[5] https://www.nysenate.gov/legislation/bills/2023/S999/amendment/A.